Karnataka High Court
Smt. Sundaramma vs Sri. G Ramachandra on 13 June, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13th DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.937 OF 2010
BETWEEN:
Smt. Sundaramma,
wife of Sri. G.Ramachandra,
Aged about 37 years,
No.349, 5th Main Road,
3rd Stage, 3rd Block,
Basaveshwara Nagara,
Bangalore - 560 079. ...PETITIONER
(By Shri. B.Srinivas, Advocate)
AND:
1. Sri. G.Ramachandra,
son of Giridase Gowda,
Presently residing at
Doddabadagere Village,
Harohalli Post, Harohalli Hobli,
Kanakapura Taluk,
Bangalore Rural District.
2. Sri. R.Mahesha,
2
son of Sri.G.Ramachandra,
Aged about 35 years,
No.106, 4th Cross,
5th Main Road, Vittalnagar,
Bangalore - 560 018.
3. Sri. A.M.Shivanna,
son of Mallegowda,
Aged about 41 years,
Residing at No.18,
Sapalamma Temple Street,
Kadirenahalli,
Banashankari 2nd Stage,
Bangalore. ...RESPONDENTS
(Respondents served)
*****
This Criminal Revision Petition filed under Section 397 and
401 Criminal Procedure Code, 1973 by the advocate for the petitioner
praying that this Hon'ble Court may be pleased to set aside the order
dated 4.2.2008 passed in Criminal Appeal No.18015/2007 on the file
of the IV Additional Chief Metropolitan Magistrate, Bangalore and
allow this Criminal Revision Petition with cost.
This Criminal Revision petition is coming on for Hearing, this
day, the court passed the following:
ORDER
Heard the learned counsel for the petitioner. The respondents having been served, remain unrepresented. The facts leading up to this petition are as follows:
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The petitioner was the complainant before the Trial Court claiming that she was the absolute owner of the property bearing No.43, Katha No.945, Assessment No.158 of Kothanur Village, Bangalore South Taluk, which had been purchased under a registered sale deed dated 28.10.1999 and that she had constructed a house thereon and was residing there with her husband, who was accused No.1 in her complaint. Though the petitioner was married to Accused No.1 on 25.05.1997, it was not a happy marriage and it was the case of the petitioner that she was ill-treated by Accused No.1 throughout their marital life and he was wayward in his habits and was not providing for the petitioner and on the other hand, was persuading the petitioner to dispose of the above property, or to face dire consequences. It is further alleged that the petitioner was thrown out of her own house by Accused No.1 in the month of July 2006 and she was further threatened not to return, unless she agreed to transfer the property in his name, or agreed to sell the same at his instance. The petitioner claims that she had no choice but to seek the protection of 4 her kin, and it became impossible for the petitioner to go back to Accused No.1. Thereafter, the petitioner had learnt that the Accused No.1 had engineered the creation of bogus documents, such as a Power of Attorney said to have been executed by the petitioner in favour of Accused No.3 and on the basis of the same, the property had also been transferred under a registered sale deed in favour of Accused No.2. It is in that background that the petitioner chose to initiate both civil and criminal proceedings. It is stated that the civil suit filed by her in respect of the above transaction seeking to deprive her of her property, is pending before a Civil Court. However, insofar as the complaint lodged by the petitioner is concerned, the same has been summarily rejected at the threshold, by the court below. It is that which is under challenge in the present proceedings.
2. The learned counsel for the petitioner would point out that the circumstances would indicate that the petitioner was entitled to seek remedies both under the civil law as well as the criminal law. 5 The court below having rejected the complaint on a summary finding that the matter had to be decided in a civil suit, and dismissing the complaint under Section 203 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.' for brevity), placing reliance on a judgment of the Supreme Court in 2006 (6) SCC 736 (Indian Oil Corporation Vs. NEPC India Limited. and Others), is wholly misplaced. The learned counsel would point out that the decision of the Supreme Court turned on entirely a different factual matrix relating to a contract between an Oil Corporation and other companies relating to supply of Aviation turbine fuel and aviation lubricants, and dispute having arisen in respect of a breach of contract, criminal cases also had been lodged alleging unauthorised removal of engines and certain other parts of two hypothecated aircrafts. It is in that background that the court below while addressing the order passed by the High Court quashing the criminal cases filed under Section 482 of the Cr.P.C., had proceeded to address the law on the point. The same could not have been applied to the present case on hand. The learned 6 counsel would draw attention to the principles culled out from various decided cases, as spelt out by the Apex Court.
"(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides / malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
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(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint 8 relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."
3. The Learned counsel would point out that the complaint could not have been rejected applying any of the above principles and as there is no discussion by the court below as to its reasoning except stating that there were civil proceedings initiated in respect of the facts and circumstances, by itself was not a ground on which the complaint could have been rejected. The court below ought to have recorded the statement of the complainant and thereafter could have applied its mind as to whether a criminal case which could go to trial was made out, or it could have directed an investigation into the facts and circumstances and thereafter, formed an opinion as to the further course of action. The summary rejection of the complaint results in a miscarriage of justice, especially in the light of the fact that there was 9 marital discord between the petitioner and Accused No.1 and there were pending matrimonial disputes before a competent court in that regard, which have all been completely overlooked by the court below and hence, seeks interference of this Court.
4. From the above facts and circumstances, it is evident that the court below ought to have proceeded with circumspection. It is noticed from the order-sheet that the complainant was present as on 5.12.2007 and the matter was adjourned to hear on the complaint, to 10.12.2007. Thereafter, on 10.12.2007, it was adjourned to 4.2.2008 on which date, it is recorded that the complainant was absent and that there was no representation. Thereafter the court has proceeded to peruse the complaint and has held that the complaint ought to be rejected at the threshold. Since the complainant had been diligently attending the court on earlier occasions as is evident from the order- sheet dated 22.11.2007, 24.11.2007 and 5.12.2007, the bona fides of the complainant was not suspect. The rejection of the complaint was 10 not on the ground that the complainant had remained absent, but the court having expressed an opinion about the maintainability of the complaint itself. Hence, the same is not in accordance with law and the decision relied upon also would not apply to the facts and circumstances. Therefore, there is a miscarriage of justice in the summary rejection of the complaint.
Accordingly, the petition is allowed. The private complaint is restored to file. The court below shall take the complaint on board and deal with the same in accordance with law, after notice to the complainant, on restoration of the complaint to file.
Sd/-
JUDGE KS